[1998] PNGLR 66

PAPUA NEW GUINEA

[national court of justice]

THE STATE

v

PETER OH PIOM MO

jalina j
kavieng: 8-11 July 1997; 10 March 1998; rabaul: 16-20 February 1998

Criminal Law - Bribery - Offer of cash - At night - To Fisheries Officer - Offer made in line with accepted practice within organisation accuseds associated with - Whether accused intended to bribe in the circumstances - Existence of accepted practice no defence - Accepted practice not strictly followed - Criminal Code Act (Ch. No. 262) ss 97B(1)(d).

Evidence - Bribery - Past practice in giving financial assistance to Public Servants - Evidence of such practice inadmissible - Criminal Code Act (Ch. No. 262) s 97D(1).

evidence – Rule in Brown v Dunn – Effect of failure by prosecution counsel to put the State’s case to the defence witnesses considered.

Facts

The accused offered K2,000 in cash as an inducement to one Mr Lamiller Pawut, a senior Fisheries Surveillance Officer with the National Fisheries Authority based in Kavieng, to secure the early release of a vessel "Sea Chase" which was earlier impounded by Mr Pawut in Manus for alleged breaches of the Fisheries Act. The accused was therefore charged under Section 97 B (1)(b) for offering bribe to a member of the Public Service to perform or abstain from performing or aiding or procuring an official act. In his defence, evidence was led and submission made that what the accused did was in accordance with existing practice where private companies gave financial assistance to public servants to enable them to discharge their official duties and therefore the accused should be acquitted.

Held

1.	Evidence of previous financial assistance given by private companies to enable public servants to discharge their official duties are not admissible by law, namely Section 97 D (1) of the Criminal Code Act that says: "In proceedings for an offence under this Division, evidence is not admissible to show that a gratification is customary in any trade, vocation or calling".

2.	Under the circumstances, failure by the State Prosecutor to put the State’s case to each of the defence witnesses as required by the rule in Browne v Dunn is not fatal to the State’s case. "I do not think that failure to put a party’s case is fatal to the State’s case. "I do not think that failure to put a party’s case is fatal. In my view such failure only goes towards what weight is to be attached to the unchallenged testimony of all the other matters in evidence. Is a person whom the court considers has committed the crime going to be acquitted simply because the State Prosecutor failed to put the State’s case to the accused and his witnesses? If that were to happen, it would amount to injustice being done to the people through the State": per Jalina, J.

3.	The accused is convicted of bribery as charged.

Counsels

N T Sios, the State.
J S Reeve, the accused.

10 March 1998

Jalina j. This accused, a South Korean national, is charged that he on 20th May 1996 at Kavieng town in Papua New Guinea offered to one Lamiller Pawut, a person employed in the Public Service two thousand kina (K2,000.00) in cash as an inducement to hinder Lamiller Pawut in the performance of an official act. He has pleaded not guilty to the charge.

The State has alleged that on 20th May 1996 the accused and one Bill Vevo rang one Lamiller Pawut, the Senior Fisheries Surveillance Officer with the National Fisheries Authority based in Kavieng and spoke to him about a vessel "Sea Chase" which was then impounded by Mr Pawut in Manus for alleged breaches of the Fisheries Act. They also told him that they would be traveling to Kavieng that same afternoon and that they wanted to meet him to discuss matters relating to the Sea Chase.

On arrival at Kavieng, the accused and Bill Vevo rang Mr Pawut and asked him to meet them at Kavieng Hotel but he refused saying that they should meet him during official hours. But they insisted on seeing him because he was the fisheries officer who had traveled to Manus on 16th May 1996 and impounded the Sea Chase. During the conversation Mr Pawut told them that he would bring a fisheries officer with him but the accused and Bill Vevo insisted on seeing him alone. Mr Pawut agreed to meet them at Malangan Lodge but also took two fisheries officers and a relative for a drink. While Mr Pawut and his friends were at Malangan Lodge, the accused and Bill Vevo arrived.

When the accused and Bill Vevo arrived, they started discussing with Mr Pawut the release of the boat and at the same time offered K2,000.00 cash to Mr Pawut. They had purposely come to give that money to Mr Pawut but he refused. They insisted that it was not a bribe but they wanted the Sea Chase released. They further told him not to inform Fisheries Headquarters about it.

After Mr Pawut refused to accept the money, the accused and Bill Vevo asked him to drop them off at Kavieng Hotel, which he agreed to do. When they got into the vehicle, the accused sat on the left front seat and Mr Pawut on the driver’s seat. Mr Bill Vevo and Mr Pawut’s friends including the two fisheries officers sat at the back of the vehicle.

On the way to Kavieng Hotel the accused took out the envelope containing the cash and put it in the centre box of the vehicle for Mr Pawut to take the money. Mr Pawut dropped off the accused and Mr Vevo at the Kavieng Hotel and drove to Fisheries College where he was living at the time. The next morning the matter was reported to the principal of the Fisheries College and then to the police.

The accused has been charged pursuant to s. 97B in particular sub-section (1)(b) of the Criminal Code Act (Ch. No. 262).

"Bribery of member of public service

1. 	A person who offers to a person employed in the Public Service, or being a person employed in the Public Service, solicits or accepts a gratification as an inducement or reward for:

(a)	the person employed in the Public Service voting or abstaining from voting at any meeting in favour of or against any measure; or

(b)	the person employed in the Public Service performing or abstaining from performing or aiding in procuring or hindering the performance of an official act; or

(c)	the person employed in the Public Service aiding in procuring or preventing the passing of any vote or granting of any contract in favour of any person; or

(d)	the person employed in the Public Service showing or refraining from showing any favour of disfavour in his capacity as a person employed in the Public Service, is guilty of an offence. 

Penalty: A fine at the discretion of the Court or imprisonment for a term not exceeding seven years, or both.

2. 	An offence under Subsection (1) is committed notwithstanding that the person employed in the Public Service had no right or opportunity to show or refrain from showing favour or that the inducement was not in relation to the affairs of the public body."

Evidence shows that after impounding the Sea Chase on 16 May 1996 and ordering it to sail to Kavieng for further investigation, Mr Pawut remained in Manus until Sunday 19 May when he returned to Kavieng. His reason for not staying on in Manus beyond 19th May was that his travel was only funded up to that date (19th May).

Evidence also shows that the ship’s agent, Goldstar Shipping was notified in Kokopo about the impounding of the Ship and other matters seized from it. Mr Robinson Taula, the General Manager of Goldstar Shipping tried to contact Mr Pawut at Kavieng by phone but to no avail as it was a weekend. 

Mr Pawut said that the accused made several calls to him in Manus between 16 and 19 May 1996 but the accused denied this. The accused said that he knew about it on Monday 20th May and came to Kavieng with Bill Vevo to negotiate between the Fisheries Officer and the vessel’s Korean owners because he could speak Korean to the owners.

The accused says that any telephone conversation that was had was between Bill Vevo and Mr Pawut. He did not get involved until they reached Kavieng on 20th but then even in Kavieng he says that Bill Vevo was doing most of the talking. He only joined the conversation once in a while. To the extent that the accused occupied the same office as Goldstar Shipping, I do not believe that he did not become aware of the impounding of the Sea Chase from Robin Taula on or about 16th or 17 May. I also do not believe that he did not telephone Mr Pawut at the Harbourside Hotel in Manus between 16th and 19th May 1996 prior to Mr Pawut’s return to Kavieng.

Bill Vevo, it should be noted, became involved upon request from Robinson Taula and Jack Namaliu, when they met him at the premises of Goldstar Shipping on the morning of 20th May. Bill Vevo was a customs officer who was on recreation leave. He (Bill Vevo) said that his assistance was sought because he was a customs officer and was familiar with the procedures and also he knew Mr Pawut. He said that he was authorised in writing by his employer, the Internal Revenue Commission to engage in private employment but failed to produce the authorisation in court. I do not accept that Bill Vevo was so authorised to engage in private employment while on recreation leave.

The accused, Mr Taula and Mr Vevo all gave evidence that on Monday morning 20 May, a meeting was held with Jack Namaliu during which Goldstar Shipping made available K2,000.00 in cash from monies it kept at the office and that money was to be used for payment of airfare, accommodation and travel for a fisheries officer to travel to Manus to complete investigation because the vessel was costing the ship owner over K10,000.00 per day and the longer it remained in port, it would be too costly for the ship owner. Furthermore, the ship could not sail to Kavieng for further investigation because of a leak in its propeller shaft and as such it was necessary for investigation to be completed in Manus. The main defence witnesses namely the accused, Bill Vevo and Robinson Taula also said that the K2,000.00 that was made available by Goldstar Shipping was in accordance with previous practice whereby Goldstar Shipping had given similar assistance to public servants including fisheries officers to carry out investigations. Mr Vevo said that he himself and other public servants including forestry officers had received financial assistance from companies involved in the particular industry so that matters such as clearance of logs etc. could be expedited. Evidence of previous payment or financial assistance by Goldstar Shipping was adduced through defence. I will deal with this aspect later.

When questioned by police about a week later on 28 May 1996, the accused told the police that the K2,000.00 was his own money and that Goldstar Shipping would reimburse him later but in his evidence in chief he denied that it was his own money.

It is not disputed that the K2,000.00 was offered to Mr Pawut. Evidence between the key witnesses namely Lamiller Pawut for the State and the accused, Bill Vevo and Robinson Taula for the accused regarding the intention at the time it was given are in direct conflict. What was the accused’s state of mind when he made the offer? To determine this, the modus operandi must be considered.

The accused has called character evidence mainly through affidavits from a number of people including some prominent church and business people to show that the accused character was such that he was unlikely to commit the alleged offence. For the simple reason that a good person may in a given situation do something that he may not ordinarily be expected to do, I place little weight on their evidence.

Mr Reeve for the accused has submitted that I should acquit the accused because what the accused had done was in accordance with normal practice whereby private companies gave financial assistance to public servants to discharge their official duties. Goldstar Shipping had given similar assistance previously and as such there was nothing wrong with what the accused did.

Mr Reeve further submitted that the failure by the State Prosecutor to put the State’s case to each of the defence witnesses as required by the rule in Browne v Dunn was fatal and as such the accused should be acquitted. With respect I am not inclined to accept Mr Reeve’s submission on this aspect. I do not think that failure to put a party’s case is fatal. In my view such failure only goes towards what weight is to be attached to the unchallenged testimony. This must also be considered in light of all the other matters in evidence. Is a person whom the court considers has committed the crime going to be acquitted simply because the state prosecutor failed to put the State’s case to the accused and his witnesses? If that were to happen, it would also amount to injustice being done to the people through the State.

As regards Mr Reeve’s submission based on previous financial assistance by Goldstar Shipping as well as the practice of financial assistance by private enterprise generally, I do not consider that it avails the accused when considered in the overall circumstances and context in which the money was offered. Although not objected to by counsel for the State, evidence of past practice was clearly inadmissible evidence under s 97D(1) of the Criminal Code:

"Evidentiary provisions relating to this Division

(1)	In proceedings for an offence under this Division evidence is not admissible to show that a gratification is customary in any trade, vocation or calling"

It could be argued that since counsel for the State did not object, such evidence should be allowed as admissible evidence. However such an argument again would not avail the accused as such practice was not strictly followed. From the documents tendered, it appears that services were rendered to various public servants and then invoices were sent to Goldstar Shipping for payment. Why was similar thing not done here? Why didn’t the accused or Goldstar Shipping pay for the airline tickets, book hire car, arrange accommodation etc. first and then approach Mr Pawut. If Mr Pawut refused to accept such arrangements, I do not think it would be difficult for the accused or Goldstar Shipping to obtain a refund.

Furthermore, if the K2,000.00 belonged to Goldstar Shipping, why didn’t the accused say so when questioned by police a week later when it was still fresh in his mind? Instead he said the money was his own money.

As regards the aspects of Mr Pawut’s evidence that when offered the money at Malangan Lodge, he told the accused and Bill Vevo that he would think about it and inform them the next day whether he should accept the money, I do not consider that such statement could be taken to mean that it was not intended as a bribe since s 97C(1) provides for a person who is offered gratification to report the offer to the Police at the earliest opportunity. Mr Pawut has considered the offer to be tantamount to bribery so he reported to the Principal of Fisheries College as well as the Police the next day bearing in mind that the offer was made after hours. 

On the whole I do not believe the accused and his witnesses. The accused did not impress me as a witness. Whilst I appreciate that he had difficulties with English in the witness box, he told the court a different story to that which he told the police about the money. If he is to be considered an honest person then he should have been consistent with his story. I also do not believe that he was unaware and did not contact Mr Pawut in Manus before 20th May. I believe that the vessel being owned by a Korean company, the accused himself being a Korean and Goldstar Shipping being the ship’s agent, he knew about the impounding of the vessel and took an active part towards securing its release. Bill Vevo was a public servant who was on recreation leave. From a mere request from Jack Namaliu and Robinson Taula he took an active role in seeking an early release of the vessel. It seems to me that the main reason Bill Vevo was involved was to exert pressure upon Mr Pawut to release the vessel. If Mr Vevo was aware of the practice whereby private companies assisted public servants in funding their travels, why didn’t he advise the accused or Goldstar Shipping not to take cash to Kavieng and offer to Mr Pawut but to verbally discuss with him. The honesty of public servants who behave in the manner that Mr Vevo had done whilst officially on recreation leave and in respect of matters, which do not affect him personally, should be treated with suspicion. Mr Robinson Taula being the General Manager of Goldstar Shipping should have played an active part but instead sent the accused and Bill Vevo. Being familiar with payments being made upon provision of invoices after providing services to public servants, he should have advised the accused to make arrangements first and then inform Mr Pawut. Alternatively he should have advised them to travel to Kavieng and verbally discuss the aspect of funding Mr Pawut’s travel to Manus without actually offering cash. Mr Jack Namaliu’s failure to testify regarding the K2,000.00 cash casts doubt as to whether there was a in fact a meeting on the morning of 20th May and whether in fact the money belonged to Goldstar Shipping. I observed the demeanour of the defence witnesses very carefully and I found that they were trying to construct a defence to secure the accused’s acquittal. I accept the evidence of Lamiller Pawut. I also observed his demeanour carefully and found him to be a witness of truth. Any conflict between his evidence and that of the accused and Bill Vevo is understandable since two opposing parties are unlikely to accept the evidence of the other party.

When I consider this case in light of the fact that the so called "accepted practice" was not strictly followed, that the cash was sought to be given at night at the Malangan Lodge but refused by Mr Pawut and then later given to Mr Pawut in the vehicle when the accused and him were alone in front of the vehicle, coupled with the fact that the Sea Chase was losing over K10,000.00 per day, I am of the opinion that the accused was eager to have the vessel released as soon as possible and with that motive and the interest in mind, offered the money as a bribe.

I am therefore satisfied beyond reasonable doubt of the guilt of the accused and as such I convict him of bribery.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Warner Shand Lawyers.